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20. Matters Outside the Uniform Evidence Acts

Rape shield laws

20.11 All states, the ACT
and Northern Territory have passed legislation which deals specifically with
the admission of evidence in criminal proceedings where someone is charged with
a sexual offence.[10]
These ‘rape shield laws’ are said to have three principal aims. These are to:

prohibit the admission of evidence of a complainant’s sexual
reputation;

prevent the use of sexual history evidence to establish the
complainant as a ‘type’ of person who is more likely to consent to sexual activity;
and

exclude the use of a complainant’s sexual history as an indicator
of the complainant’s truthfulness.[11]

20.12 All Australian rape
shield laws take the form of an exclusionary rule and share a similar
procedural scope.[12]
However, there are a number of differences between federal, state and territory
rape shield laws.[13]
All the laws protect the complainant in relation to the offence charged but do
not extend to other witnesses, except in the case of the Commonwealth
provisions, which protect every child witness in sexual offence proceedings.[14]

20.13 All existing rape
shield laws are associated with other provisions regulating the
cross-examination of witnesses and the adducing and admission of evidence of
witnesses’ sexual history by any party. The exception is in Western Australia,
where the law only applies to defence evidence.[15]
These provisions may also deal with specific warnings or directions to be given
by judges in sexual offence cases.[16]
Aspects of the examination of witness and the giving of directions, including
in sexual offence proceedings, are dealt with in Chapters 5 and 18.

20.14 All states and the ACT
have provisions which make evidence relating to the sexual reputation of a
complainant inadmissible.[17]
These provide no exceptions to their exclusionary rule. The justification for
making evidence of sexual reputation completely inadmissible is said to be that
‘evidence of reputation, even if relevant and therefore admissible, is too far
removed from evidence of actual events or circumstances for its admission to be
justified in any circumstances’.[18]

20.15 However, Northern
Territory legislation allows evidence of the sexual reputation of the
complainant to be admitted with the leave of the court, if the court is
satisfied that the evidence has substantial relevance to the facts in issue.[19]
Similarly, the federal law allows evidence of a child witness’ or child
complainant’s sexual reputation to be admitted with the leave of the court, if
the court is satisfied that the evidence is substantially relevant to facts in
issue in the proceeding.[20]

20.16 Australian
jurisdictions have adopted different approaches in relation to evidence of the
‘sexual activities’,[21]
‘sexual experience’[22]
or ‘sexual experiences’[23]
of the complainant.

20.17 The most important
distinction is between New South Wales, where the admissibility of such
evidence depends on whether it falls within specific statutory exceptions,[24]
and the other jurisdictions, where the evidence is inadmissible unless the
leave of the court is obtained. Admissibility in the latter jurisdictions is a
matter for the judge’s discretion, although the exercise of the discretion is
subject to various conditions laid down by the legislation.[25]

20.18 A further distinction
may be drawn within the ‘discretionary models’. In Victoria, Western Australia,
the Northern Territory and Tasmania, the sexual experience provisions apply
(expressly or by implication) to prior sexual experience between the
complainant and the accused. In the remaining jurisdictions, the sexual
experience or conduct provisions do not apply to ‘recent’ sexual activity
between the complainant and the accused.[26]

Concerns about the rape shield laws

20.19 There are concerns
about the operation of the rape shield laws, many of which have been canvassed
in reports by the Model Criminal Code Officers Committee of the Standing
Committee of Attorneys-General (MCCOC), the New South Wales Law Reform
Commission and the Victorian Law Reform Commission.[27]

20.20 These reports have canvassed concerns about whether a mandatory or
discretionary model is preferable for dealing with the admission of evidence of
a complainant’s sexual experience;[28]
and whether the New South Wales legislation[29]
is too restrictive, so that it excludes not only irrelevant but also relevant
material concerning the complainant’s sexual experience.[30]

20.21 The MCCOC report
considered the relative merits of the mandatory and discretionary approaches in
some detail.[31]
The report referred to the ‘undoubted difficulties encountered with the New
South Wales model’ and the fact that the rest of Australia and other common law
jurisdictions have rejected the mandatory model. MCCOC stated that it was
‘attracted to a strictly circumscribed discretionary model’.[32]
MCCOC therefore recommended that the Model Criminal Code should contain a
provision that prohibits, in the trial of a sexual offence, questioning of a
complainant as to prior sexual experience unless leave of the court is
obtained.[33]

Relationship with the uniform Evidence Acts

20.22 The uniform Evidence
Acts do not affect the operation of federal, state or territory rape shield
laws.[34]
The rape shield laws operate alongside provisions of the uniform Evidence Acts
that regulate the admission of evidence generally, including evidence of sexual
reputation or sexual experience. Evidence of sexual reputation or sexual experience
may be inadmissible under the rape shield laws, the uniform Evidence Acts, or
both.

20.23 For example, leaving
aside the operation of rape shield laws, where evidence of a complainant’s
sexual reputation or experience is sought to be adduced as relevant to the
complainant’s credibility, it may be excluded under s 102 of the uniform
Evidence Acts unless it is relevant for another purpose or falls within one of
the exceptions to the credibility rule. The operation of the credibility rule
is discussed in Chapter 12.

20.24 Evidence of a
complainant’s sexual reputation or sexual experience may be admissible under
the exception to the credibility rule provided by s 103 of the uniform
Evidence Acts. This section provides that the credibility rule does not apply
to evidence adduced in cross-examination of a witness (including the
complainant in a sexual offence case) if the evidence has substantial probative
value. However, the evidence may still be ruled inadmissible under rape shield
laws, depending on the applicable law and the exercise of judicial discretion
(where available).

20.25 In some circumstances,
evidence of a complainant’s sexual reputation or experience may be subject to
the tendency rule. As discussed in Chapter 11, s 97 of the uniform
Evidence Acts provides that evidence of character, reputation, conduct or a
tendency is not admissible to prove a person’s tendency to act in a particular
way or have a particular state of mind, unless the court thinks that the
evidence would have significant probative value.

20.26 Again, even where such
evidence is admissible under the uniform Evidence Acts, the evidence may be
ruled inadmissible under rape shield laws. Conversely, evidence about prior
consensual sexual activity involving the complainant and the accused may be
admissible under exceptions in the rape shield laws, but still constitutes
tendency evidence for the purposes of s 97 of the uniform Evidence Acts.
If so, in order to be admissible, notice has to be given to the other party and
the evidence must have significant probative value.

Locating rape shield laws

20.27 In some states and
territories, rape shield provisions are contained in legislation dealing with
criminal procedure[35]
or with evidence and procedure in sexual offence cases specifically.[36]
Some non-uniform Evidence Act jurisdictions have rape shield provisions in
general evidence legislation.[37]

20.28 Tasmania is the only
uniform Evidence Act jurisdiction to include rape shield provisions in evidence
legislation. In 1996, the Tasmanian Law Reform Commissioner’s Special Committee
on Evidence recommended that, if Tasmania were to adopt the uniform Evidence
Act, then s 102A of the Evidence Act 1910 (Tas) containing
Tasmania’s rape shield provisions should be transferred to Chapter XIV of
the Criminal Code Act 1924 (Tas).[38]
However, the provisions were instead re-enacted in Tasmania’s uniform evidence
legislation.[39]

20.29 As discussed in
IP 28, in the interest of uniformity between Australian jurisdictions, and
to ensure consistency between rape shield provisions and those of the uniform
Evidence Acts, there may be good reasons to recommend including provisions
dealing specifically with the admission of evidence of sexual reputation or
experience in the uniform Evidence Acts. However, as each jurisdiction which is
part of the uniform Evidence Acts scheme has enacted different rape shield
provisions, uniform rape shield provisions would need to be developed.[40]

20.30 In IP 28, opinion
was sought as to whether there were concerns about the relationship between the
uniform Evidence Acts and the rape shield provisions in state and territory
legislation and whether the uniform Evidence Acts should be amended
specifically to include provisions dealing with the admission of evidence of
sexual reputation or experience.[41]

20.31 In DP 69, it was
suggested that, while it might be desirable to include rape shield provisions
in the uniform Evidence Acts,

given the differences in the
approach taken to the rape shield provisions between NSW and other States (and
the unlikelihood of achieving identical provisions) inclusion of these
provisions in the Evidence Act is not practicable.[42]

20.32 Another view was that
rape shield and similar provisions should not be introduced into the uniform
Evidence Acts because the Acts should not contain provisions applicable only to
specific offences.[43]

20.33 The Commissions’
common policy position is that uniformity in evidence laws should be pursued
unless there is good reason to the contrary. Uniformity in rape shield laws
could be advanced by an agreed recommendation for enactment in federal, state
and territory evidence laws.

20.34 In DP 69, the
Commissions noted that developing recommendations on uniform rape shield laws
would require review of the effectiveness of the provisions in each
jurisdiction and review by the Commissions of previous recommendations for
reform of rape shield laws. Such a project is beyond the terms of reference of
the current Inquiry. However, the Commissions support harmonisation of rape
shield laws in principle. Once agreement is reached on the content of uniform
rape shield laws, the desirable location for those provisions can be
determined. [44]

Submissions and consultations

20.35 The Commissions
received one submission that was critical of this approach. It argues strongly
that there should be greater uniformity to ensure that the special problems
faced by children giving evidence, and all witnesses giving evidence of
experiences of sexual assault, are adequately addressed.

At the very least, a proposed uniform act could incorporate
these by reference or identify the common elements that do exist and include
those, plus incorporating additional local provisions. It would be far better
for the combined law reform commissions to take the opportunity for national
leadership created by this reference and propose national provisions. A further
inquiry is not really needed. The special needs of these vulnerable witnesses
is well established, as are the continuing obstacles and limited implementation
of the many evidentiary reforms … Failing to address the distinctive and
well-documented obstacles faced by these witnesses implicitly supports a view
that their needs are not significant enough to be addressed in comprehensive
uniform legislation.[45]

20.36 It was also noted that
the lack of uniformity in protective provisions for sexual assault complainants
supports the placement of such provisions in the uniform Evidence Acts.

Some protective provisions do not exist at all in
Commonwealth law, except for children in connection with specific crimes.
Although the report attempts to argue that some protection is provided by a
sort of patchwork of the general provisions, this is unduly complex and
uncertain in scope.[46]

The Commissions’ view

20.37 In Chapter 2 of this
Report, the Commissions note the general policy that the uniform Acts should be
of general application to all criminal and civil proceedings and should
generally not include provisions of application only to specific offences or
categories of witness. However, the chapter also acknowledges that strict
adherence to this policy is not practicable, and that the balance of
convenience and policy principle will differ from case to case.

20.38 For example, even
though this may be considered ‘offence specific’, it is proposed that a sexual
assault communications privilege be included in the uniform Evidence Acts. The
Commissions believe a distinction may be drawn between the privilege and other
special measures designed to assist witnesses in a particular type of matter.
In the case of a sexual assault communications privilege, it is not the nature
of the witness which causes him or her to need special protection, it is the
recognition by law of the benefit to the public in (where it is in the
interests of justice) protecting the confidentiality of the relationship
between a complainant and a counsellor. It is therefore appropriate for the
privilege to be legislated for alongside the other relationships whose
confidentiality is similarly recognised at law, those being client legal
privilege and the confidential professional relationship privilege.

20.39 Whilst another option
would be to recommend the enactment of the different rape shield laws in the
uniform Evidence Acts of each jurisdiction, this approach carries dangers for
the objective of the uniform Evidence Acts. Arguably, the more non-uniform
provisions included, the less the incentive to maintain uniformity in the
existing provisions.

20.40 The Commissions remain
of the view that it is consistent with the structure of the uniform Evidence
Acts and their intended application for specific evidentiary provisions
relating to sexual offence cases to remain outside the Acts.[47]
In Chapter 2, the Commissions recommend that all Australian jurisdictions
should work towards the harmonisation of provisions relating to issues such as
children’s evidence and offence-specific evidentiary provisions, and in
particular those relating to sexual assault.[48]
Part of this work could include an inquiry into the content and operation of
federal, state and territory rape shield laws, with a view to achieving
uniformity. In Chapter 2, the Commissions suggest that the Standing Committee
of Attorneys-General (SCAG) establish an expert advisory committee to assist
the process of continuing amendment to the uniform Evidence Acts as the need
arises.[49]
This group could undertake an inquiry into the operation of federal, state and
territory rape shield laws.

[11] T Henning and S Bronitt, ‘Rape Victims on Trial: Regulating the Use and Abuse of Sexual
History Evidence’ in P Easteal (ed) Balancing the Scales: Rape, Law Reform
and Australian Culture (1998) 76, 82.

[36]Criminal Law (Sexual Offences) Act 1978 (Qld); Sexual Offences (Evidence and
Procedure) Act 1983 (NT); Evidence (Miscellaneous Provisions) Act 1991
(ACT). The ACT legislation deals with a range of other matters, including
evidence of children and the use of audio-visual links in proceedings.

[47] As
noted above, in 1996, the Tasmanian Law Reform Commissioner’s Special Committee
on Evidence recommended that, if a uniform Evidence Act were adopted in
Tasmania, Tasmania’s rape shield provisions should be transferred to crimes
legislation: Law Reform Commissioner of Tasmania, Report on the Uniform
Evidence Act and its Introduction to Tasmania, Report 74 (1996),
rec 5, [6.1.3].